Appeal denied for local woman
NEW ORLEANS — A Ferriday woman who was sentenced in July to two years in prison for embezzling $110,848 in Veteran’s Affairs pension benefits was denied an appeal Monday by the U.S. Court of Appeals for the Fifth Circuit in New Orleans.
Fontaine C. Gremillion pleaded guilty to the charges in January 2010 and was sentenced by U.S. District Judge Donald E. Walter in July 2010 in federal court in Alexandria.
Along with the two-year sentence, Gremillion was also ordered to pay a $50,000 fine and to serve 320 hours of community service once her prison term is complete.
The U.S. Attorney’s office had accused her of failing to report her father’s full income when she filed for his VA pension benefits in 1999 when she had power of attorney for him. VA pensions are determined in part by the veteran’s annual income.
Gremillion filed an appeal March 11 claiming that the district court erred in using $110,848 as the loss amount because the parties stipulated that the loss amount would be $16,399 for sentencing purposes and the government failed to establish that she intended to defraud the VA.
She also claimed that the district court erred in imposing a sentence that was not right with the guidelines of the crime. The calculated guideline range based on a loss of $110,848 is 10 to 16 months in prison, while Gremillion was sentenced to 24 months.
According to the ruling, the district court’s calculation of the amount of loss is a factual finding that is reviewed for clear error, and Gremillion’s argument that the district court made a mistake by disregarding the stipulated loss amount is without merit.
Sentencing stipulations between the government and the defendant are not binding on the district court, particularly when Gremillion had not entered a guilty plea pursuant to a binding plea agreement.
The ruling also stated that because the loss amount was based on the actual amount of benefits Gremillion fraudulently received, and not on any intended loss, the government was not required to demonstrate her actual intent in receiving the fraudulent funds.
It was also ruled that since Gremillion did not object to either the procedural or substantive reasonableness of her sentence in district court, her appeal was reviewed for plain error only.
Plain error must be shown through a forfeited error that is clear or obvious and that affects her substantial rights, which was not found in Gremillion’s appeal.
In reference to the Gremillion’s claim that the sentencing was above the guideline, the court ruled that due to factors such as the nature and circumstances of Gremillion’s offense and her history and characteristics the district court was right in its sentencing.
The court also cited the need to reflect the seriousness of the offense, the need to provide just punishment and the need to promote respect for the law to adequately deter others from pursuing the same crime as justification for the sentence.
Gremillion is the wife of retired appellate judge Glenn Gremillion and mother of third circuit court of appeals judge Shannon Gremillion.